R v Hickson; R v McDonald - [2022] NSWSC 1450

Supreme Court

New South Wales

Medium Neutral Citation: R v Hickson; R v McDonald [2022] NSWSC 1450
Hearing dates: 24 October 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Common Law - Criminal
Before: Harrison J
Decision:
(1) Refuse Ms McDonald’s application to recall Ms Speering.
(2) Grant Ms McDonald’s no case application with respect to Count 2.

Catchwords:
EVIDENCE – accessory after the fact to murder – whether sufficient evidence of actus reus to go to the jury – application to recall witness – whether in the interests of justice to do so

Legislation Cited:
Evidence Act 1995 (NSW), s 128

Cases Cited:
Dawson v The Queen (1961) 106 CLR 1; [1961] HCA 74
Ewan v R [2020] NSWCCA 85
R v Dileski (2002) 132 A Crim R 408; [2002] NSWCCA 345
R v Stanford (Marcus) [2016] NSWSC 1174

Category: Procedural rulings
Parties: Rex (Crown)
Maddison Hickson (Accused)
Taylah Renae McDonald (Accused)
Representation:
Counsel:
B Costello (Crown)
P Krisenthal (Accused Hickson)
P Rosser KC (Accused McDonald)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid (NSW) (Accused Hickson)
Nowland Lawyers (Accused McDonald)

File Number(s): 2021/13793; 2021/303481
Publication restriction: Nil

Judgment

HIS HONOUR: In advance of the Crown closing its case, the parties require adjudication on some evidentiary issues. These are dealt with in the reasons that follow in no particular order of significance.

Application to recall Jasmine Speering

Ms Speering gave evidence on the third and fourth days of this trial. Ms Speering had for some months lived at 17 Ronald Street, Tenambit and was present on the day when Mr Carroll died. She was inside the house, including the living room, when the incident that caused his death occurred. Ms Speering is also seen in CCTV footage of the events that followed in the front and rear garden areas of the property when Mr Carroll can be seen to stagger outside from the front door clutching his chest and to collapse on the lawn.
Part of the Crown case against Ms McDonald includes an allegation that she moved the knife that is said to have been used to kill Mr Carroll. For reasons that it is unnecessary presently to consider, that knife has never been identified. However, the Crown maintains that it is one of the several knives that were later discovered in the dishwasher and that Ms McDonald is the person who put it there. A concurrent allegation that would appear to have been live at the commencement of the trial, that Ms McDonald put the knife in the dishwasher knowing that Mr Carroll had been murdered by Ms Hickson, is no longer pursued for the reason that there is no evidence that she did so at any time following his death.
Ms Speering was cross-examined by Mr Rosser to suggest that it was she who placed the knife in the dishwasher. I directed that she answer questions that raised that issue and Ms Speering did so…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1450
Decision Date: 26 October 2022

CaseChat Overview and Summary

The case of R v Hickson; R v McDonald involved two defendants who were charged with being accessories after the fact to murder. The dispute centred on the sufficiency of the evidence presented to the jury to establish the actus reus of the crime, as well as the application to recall a witness. The matter was heard in the Supreme Court of South Australia.

The legal issues before the court were whether there was sufficient evidence to allow the jury to consider the defendants' guilt for being accessories after the fact to murder, and if it was in the interests of justice to recall a particular witness. The court had to carefully consider the nature of the evidence and the potential impact of recalling a witness on the fairness of the trial.

In addressing the sufficiency of the evidence, the court determined that there was indeed enough evidence for the jury to consider the defendants' guilt. However, regarding the recall of the witness, the court found that it was not in the interests of justice to do so, given the circumstances and the timing of the application. The decision was based on the potential for prejudice to the defendants and the likelihood that the witness's testimony would not significantly alter the outcome of the trial.

The final orders of the court were that the application to recall the witness was dismissed, and the case proceeded to the jury with the evidence as it stood. The jury was instructed to consider the evidence of the defendants' involvement as accessories after the fact to the murder.

Orders